Posted
by
Soulskillon Sunday May 09, 2010 @11:23AM
from the presuming-a-lot-about-our-legislators dept.

Midnight Warrior writes "We could solve the H.264debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard. Ideally, each standard would also be required to have a 'reference design' that could be used without further licensing. This could also solve problems with a ton of other deeply entrenched areas like hard drives, DRAM, etc. RAND tries to solve this strictly within industry, but both the presence of submarine patents and the low bar required to obtain a patent have made an obvious mess. Individual companies also use patent portfolios to set up mutually assured destruction. I'm not convinced that industry can solve this mess that government created. But I'm not stupid; this clearly has a broad ripple effect. Are there non-computer industries where this would be fatal? What if the patents were unenforceable only if the standard had a trademark and the implementer was compliant at the time of 'infringement'? Then, the patents could still be indirectly licensed, but it would force strict adherence to standards and would require the patent holders to fund the trademark group to defend it to the end. In the US model, of course."

Whereas H.264 ("The Standard") is a standard licensed under reasonable and non-discriminatory terms which promotes the science and useful arts.... bleh bleh bleh... any patent infringement claims against H.264 must be made known within 6 months of the passage of this law. Failure to make said patent infringement claims known within the specified time period shall prevent any future claims, actions, lawsuits, or other method of redress with respect to the implementation and/or use of the standard

...any patent infringement claims against H.264 must be made known within 6 months of the passage of this law.

I don't think that's what the OP means. Here's what he wrote:

any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.

I think he means that any patents contributed to an industry standard consortium (like the WiFi Alliance) can't be enforceable. You're suggesting something about patents not contributed to the standards body being enforced against implementations of the technology that are authorized by the standards body. Or something.

Honestly, I'm not entirely sure what either of you mean, or why. And IAAL - in fact, I practice in this area every day.

Is this about making sure that technologies issuing from the standards body are freely available for use by anyone? That's the whole point of the patents owned by the body - to ensure that implementations follow the guidelines of the standards body (particularly about compatibility.) So you're lobbying to allow people to implement standardized technologies in non-compatible ways - i.e., in favor of "embrace, extend, extinguish?" I don't think anyone wants that.

Or maybe you're arguing that if a company has technology and patents verging on the subject matter of an industry standard - e.g., a technology competing with WiFi - but chooses to keep it proprietary, then the company can't assert its patents against implementations issuing from the standards body. That's also a bad idea - should we really force the entire industry onto one standard? Doesn't that deter the advancement of technology through the development of alternative standards that might be better? Bluetooth was first conceived as a potential competitor for WiFi, but it has its own niche and is widely implemented for headsets and such. Under this type of rule change, Bluetooth would have been scrapped as soon as WiFi took hold.

As an aside - the "submarine patents" cited by the author of this post haven't existed for decades, because (1) the patent term calculation was changed to be measured not from the date of issue, but from the date of filing, and (2) most patent applications are published at 18 months.

This is a complex field. It's easy to get confused. But the field suffers from a wide range of folks who don't understand it, and yet still want to "fix" it. Hence, this post, and many like it on Slashdot and elsewhere.

That's what this fight is about, and why Vorbis is being developed. And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.

What we really need is compulsory licensing at some percentage of the per head sale price. That way we still get the commercial value of patents without discriminating against non-commercial uses.

The term submarine patent [wikipedia.org] originally referred to a scenario in which you'd file a patent, let the procedure stall indefinitely, and only complete the process once you have someone to sue. Formerly in the U.S., you'd then get the full patent term starting from when the patent was actually granted, which could give you extra years of patent life. It also meant that nobody could possibly know about the patent, because it didn't get published until the end. But you still got most of benefits of having the patent.

The rules for granting patents in the United States were changed years ago, so this is no longer possible. Submarine patents thus do not, strictly speaking, exist anymore. But the term has caught on to just mean "patents no one knows about", and in that sense of course you still do have submarine patents.

And submarine patents do exist; there's much FUD by MPEG-LA members being spread about the possibility of Vorbis infringing yet unknown patents.

That's not a "submarine patent," which has a very specific meaning in this field.

What you describe is just MPEG-LA spreading FUD. And the standard response here is: "patent app serial numbers or STFU." Either MPEG-LA can point specifically to the applications which (if they actually mature into patents) it believes are being infringed - or it can't, and its accusations of infringement are meritless. It's that simple.

What we really need is compulsory licensing at some percentage of the per head sale price.

Even looking past the obvious question ("How does this point relate at all to anything in this thread?")... compulsory licensing suggestions have a common problem: who establishes the pricing, and based on what data and guidelines?

Usually, what people mean by these suggestions is: "Let's craft a body that's allowed to grant licenses to patented technologies for $cheap!" The problem with all such suggestions is that if you establish a body that (based on applicants' estimations) consistently underprices the value of those licenses, applicants will simply abandon the patent system - and keep their inventions as proprietary trade secrets. No more industry coalitions, no more industry standards like 802.11 and USB and HDMI... every company will make its own protocols, just like back in the 80's. Is that your notion of an ideal computing industry?

Exactly, and who will develop these technologies and put millions in to them if they can't get it back and/or profit from it? Isn't that exactly why US has had such innovative technology industry which promotes the basic idea of American capitalism? Now you want to take it away?

Learn how to use punctuation. If you want anyone to take notice of what you have to say in a meaningful way, you must learn to use punctuation. There are no commas, apostrophes, or periods anywhere in your paragraph, although there are quotation marks for your expressed sarcasm.

The fact that you are complaining about Obama shows that you are likely American. The fact that you do not seem to understand basic grammar is embarrassing. Perhaps before you try to enact sweeping change via Internet message boards, you should learn how to communicate properly.

However, CDMA EVDO was a much smoother and faster rollout, lower handset power consumption than UMTS (IIRC,) and coverage in rural areas tends to be better with CDMA, in any country that provides both CDMA and GSM.

And, the selection of phones and consumer freedom don't really exist on US GSM carriers, either.

Ironically, CDMA is the technically better standard, since GSM under the hood (at the time) was actually TDMA, a modulation/channel sharing technique known to have significant sideband emission due to the frequent switching. (also CDMA tends to fail gracefully, by steadily increasing the error rate as the channel becomes fuller, rather than simply dropping calls.)

There are no king makers for standards! They arise from a need in the industry and then they fill a gap. MPEG group didn't say ok all you use this or be fired! Who would care? The MPEG came out as the only format that was there and worked. Go to a trade show, the only computer playing motion video AT ALL back in the day was a computer playing Terminator 2 with a hardware MPEG card showing FULL SCREEN VHS quality! Back then everyone was like woaaaa! Be there and work, fill the need. Then you become a standa

The world has moved on. People are already playing their x264 videos and sharing their mkvs. This IS the standard for video. My linux-based sammy TV plays the files just fine.

If you want Linux to play catch-up and odd-man-out yet again and wining about stuff that end-users will never care about like licensing, go on. The world doesn't care about your weirdo software religion and never will. This proposal requires the entire world to change to work. I wouldn't hold my breath for it.

Indeed, Linux and Ubuntu linked in the summary have had H.264 support for years. It's a no brainer for them to pay a license for their OEM distributors to be able to sleep at night. I don't really see that as a "debate" though.

With regards to codecs like Theora I've tried a couple of times to get encode HD video in it but it always comes out blurry. I've seen videos like the HD Theora video on the big buck bunny website so I know it's possible however there doesn't seem to be much information out there on t

You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.

I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.

Your HD camera that records in h.264 has a license, the TV you have that plays h264 has a separate license, the video you upload to the web isn't your problem unless you own the site and over 150,000 people view it in which case you're correct and need to pay for a license however I doubt that case is valid for anyone apart from video sharing websites.

I find it humorous that you respond with license FUD to my open invitation to educate me on how I can make Theora work as good as H.264. Should I interpret yo

Actually, you're not licensed to do it even BEFORE the 150k people viewing it- that's just the threshold at which they have chosen to ENFORCE their IP rights. You technically still need a license for it (Check the licensing details on your gear, even the pro-grade stuff will tell you that you need a separate license for professional uses of the gear. They're not kidding.).

And stating that it's relevant to video sharing sites- they're an enabler, but YOU are the one on the hook, not they (because there's yet another license THEY have to have to do what they're doing...) and you're still needing that license in addition to the one they're paying.

As for Theora being better than h.264... No, you'd be right about that. It's on a rough par with MPEG4- VP8's closer to what you're looking for and if rumor's right Theora 2 will be in that space. Having said that, I'd prefer a web (and others...) standard to be something that's utterly unencumbered. All it'd take is for one player to play grab-em like Unisys did with LZW and you owe money all over the place. It could just as easily as not happen with h.264.

And stating that it's relevant to video sharing sites- they're an enabler, but YOU are the one on the hook, not they (because there's yet another license THEY have to have to do what they're doing...) and you're still needing that license in addition to the one they're paying.

Shorts under 12 minutes long are royalty free.

Period.

Amateur or professional production.

Free or paid distribution. It doesn't matter.

Royalties on SALES of disks or downloads are 2% of the retail price or 2 cents a title, whichever is LOWER.

MPEG LA doesn't give a damn about your wedding videos.

Subscription services with less than 100,000 paid subscribers are also royalty free. Your "viewer supported" Free Culture magazine on DVD+R is a go.

Own a cable service or TV station in a market of less than 100,000 households?

But why should they be entitled to more money if "..over 150,000 people view it in..."? Other than the license says so? That's the piece of this that really baffles me. Oh, I understand why they would license that way. More money for them. But why should I think that's OK?

Why the fuck not? He isn't asking to make the video better, he is simply asking to take the information in video A, place it into video B, and not have it look like it was shat upon. I've done it with WMV to H.264, with DivX 5 to MP4, with QT to MP4, so WTF? I have to agree with the other poster the docs for Theora really suck, as there really isn't anything to tell you "I got bitrate A in format A so you need settings A+1 and bitrate A=2" for Theora.

Unless format B is lossless, you will degrade the quality when transcoding from format A to format B. By definition, a lossy encoding will result in the loss of some information [wikipedia.org] from the source video. I haven't experimented with this, but I would guess that codecs that are similar to each other (i.e., both lose similar information) would result in less degradation with an output at roughly the same bitrate. If the codec is completely different (loses information unrelated to the information that the first c

But I don't get how information that is digital is supposed to "rot" or somehow degrade simply because you are taking it from format A to B unless the settings in B are less than A. Care to explain and back it up with citation?

I can explain it. While digital information can be copied as many times as you want and still be identical to the original, the same is not true about some transcoding.

There are two compression types - lossy and lossless.

Lossless compression (zip, rar, flac, lagarith) compresses the original data so as to remove redundancies, but still have all of the information, for example, you can compress "AAAAAAAAAA" into "10A" and save 7 bytes, but still be able to expand back into the original form. However, this ty

You buy an HD camera. it records in h.264 The moment you upload it tot he web you are supposed to buy another license for that video. The moment you share that video at your friends house on their TV. You need another license. what's that, you want to transfer that video onto a DVD, that's two more license violations.

I wish people would stop and read more about the licensing issues of H.264 They are currently generous, but MPEG-LA can literally revoke all licenses and make everyone pay fora separate license to create,view, edits, or distributes H.264 video.

I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.

Exactly. It's like creating furniture with a SawStop table saw and the patent holders expecting to get a cut of everything you make with it.You should buy the right to use the patented technology, and that should be the end of it.

MPEG LA is only interested in the big green.

2 cents a disk is chicken feed unless you are talking $1 million in sales.

Your state of the art H.264 encoder is - for all practical purposes - free as in beer until you reach that level of success. Can you say the same for the SawStop?

I've always been curious about this. The patent is obviously required for the creation of the encoding and decoding software. But how can distribution of an already encoded video be in violation of the patent? It doesn't implement the patent, only the results of using the patent. This really needs to be something that the legal basis of needs to be challenged.

Well that's the way patent law works. You have a license to do "A", but not "B". If you want to use our property to do "B", you need new permission to do that.

It's completely absurd. I've used an analogy before. Did typewriter manufacturers demand a fee for stuff authors wrote on their machines? They had patents on typewriters. There's your legal precedent, and it gets to the heart of promoting the arts and sciences. These software patents throw a ridiculous roadblock towards that goal.

Independent and concerned folks should stage a mass protest, video each other at outdoor protest sites, swap one dollar with each other for instant copies of what they shoot, on th

how would one convert a clear h.264 HD video to Theora and have it come out with the same quality.

It's 100% impossible to convert a video into a lossy format and not lose quality. When the video was converted to H.264, quality was lost. When you convert it, AGAIN, to Theora, you will get all the quality loss and artifacts from H.264, and also all the quality loss and artifacts from Theora.

For "big buck bunny" in particular, you can download the lossless video yourself, and try converting that into Theora

End users do not care about licensing costs because it has always been hidden from them. They buy a computer, thinking that the price is for the hardware itself, never being informed that they are also paying for various copyright and patent licenses. If consumers were able to see what they are really paying for, and were presented with real choices (as opposed to the current, "Well, you can have this one low end system with Ubuntu preloaded, or any of these 20 high end systems with Windows"), I think we w

Is completely clueless trolling in the summary the new standard on/. now? What does the fact of a "standard" being "trademarked" have to do with patent issues? How do you compensate patent holders if you invalidate their patent ex post facto? What "mess the government created"? Holy cow, this summary is a new low. Besides, if the author of the summary explicitly states that "he is not stupid", well, we can pretty sure about his intellectual capacity.

Is completely clueless trolling in the summary the new standard on/. now?

It's not a summary, and it's not "trolling". The paragraph IS the article, and the links are merely poor background information. Though I do agree that there's no apparent connection between trademarks and patents.

You might not agree with the article, and it's largely poorly written and poorly supported. But "trolling" isn't the same thing as a bad article. Honestly, when did "trolling" become just a poorly written article? If a

The difference between "trolling" and "bad article" is: is it purposefully stupid in order to get outraged replies? Or merely ignorantly stupid.

Interesting. I might define "trolling" as using language such as "purposefully stupid" or "ignorantly stupid" to describe something.

Actually I really detest the whole "trolling" meme. It's so incredibly subjective as to have little meaning. It becomes a bludgeon to apply to any idea that might personally enrage you. In other words "I don't have to think about th

I called it a troll because it is very hard to lead a rational discussion on patent matters at the best of times. The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

Regardless of the trolling-or-not-issue, the whole topic is half-arsed, not remotely thought through. The questions you are asking are good ones that aim at the heart of the problem. There is a deeper issue, though: What exactly *is* an industry standard for the purpose of this? Who defines it?

The article at issue here uses very loaded language from the beginning - e.g. the "government-created mess". This is designed to incite a flamefest, in my opinion.

I think you're being a bit overly sensitive. It's an opinion piece designed to show a point of view. It's not really any different from your average letter to the editor in a local newspaper. Actually probably a bit better than the average one, since the average one tends to be even more poorly worded and thought out. If you really think this a

It seems pretty naive to expect legislation against moneyed interests. They have the campaign donations and lobbyists to push against any bill that would hurt their interests, and they have plenty of money for lawyers to fight any law that gets passed tooth and nail. I really don't see a solution for this.

Actually I think its rather a case of the industry members who are getting left behind want a legislative solution to their problem, at the expensive of the industry members who have gained the advantage of a headstart.

The middle ground is to return patents to what they are supposed to cover: inventions of physical machines. Copyright and trademarks cover things like Process and Software, and they are the appropriate places to protect them.

I was in a meeting of our (electrical) industry body discussing how we would work on harmonisation of standards across the EU, with a QC (senior legal counsel) present as adviser. I asked more or less the same question - whether it would be possible to mandate that European law should require that any technology essential to meet a harmonised standard be free of licensing requirements. This would mean that a company making a single product relying on patented technology would only be able to sell it across the EU if the patent was unencumbered by licensing requirements. The reply of learned counsel?

"I'm sorry sir, your idea has become too successful, we're going to have to take it away from you now."

Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people." The real solution is to make sure you can't get patents on trivial algorithms that anyone would come up with, when presented with a particular problem. Not to take away genuinely innovative approaches that just so happen to become popular.Yes, it's true that most software patents are trivial. But not all are, and the ones that aren't should be protected just like any other innovation or invention.

Is this some sort of joke? This is similar to claiming that is too important to fail, thus the government should take it over and run it "for the people."

I don't see it as a joke, on the contrary I find it very sensible.I guess it's a matter of political opinion. The government should ensure the best for the people rather than allowing a single company (or consortium) to get royalties for things that have become ubiquitous in today's world, as that is hindering both innovation and regular activity.

The Devil's Advocate would say that H.264 would likely not have become ubiquitous if the creators knew that they wouldn't be able to patent it. It almost certainly wouldn't be as open as it is now. Do you think that Linux would have native H.264 playback if the MPEG-LA had to resort to close-sourcing it rather than relying on patents to protect their codec?

We don't need to get rid of the patents in H.264--what we need is sane licensing. There should be at most two licenses--one covering encoding and one

The Devil's Advocate would say that H.264 would likely not have become ubiquitous if the creators knew that they wouldn't be able to patent it.

You could still patent it and earn royalties, until the point when it becomes ubiquitous.

From what I can gather myself, as working for the videoconference company that is proposing a likely candidate for H.265, is that they care more about standardizing good codecs and use them in their products.Royalties are certainly a nice extra, but it's not the business model dr

Instead of invalidating patents, why not just simply say all standards must not be patent encumbered?

That turns "we're taking your great idea" into "we'll take any great ideas that you don't try to own, lock, stock, and barrel". Everyone knows the real money is always in delivering the solution and maintaining it, not trying to control the idea and own it. Large companies hate this of course, because they know that if they had to compete in a fair marketplace the small shops would eat their lunch since th

Submarine patents must be addressed. With regards to the question of h.264, the Theora submarine patent-scare is ridiculous, not because it is unrealistic, but because it is a very unsound patent-system that enables that kind of behaviour in the first place. The respectable purpose of patents is to protect inventors, not being used as legal weapons to stifle competition, or economical vampirism, and submarine patents is an obvious example of that.

More appropriately, when does something transition from a "good idea that is sparsely implemented" to an industry standard? If you set the criteria as "defined by an industry organization" (such as ANSI, ASNE) then why would a company allow patented tech into the standard? Would MILSPEC constitute an industry standard? I think the battle point would just change, with companies wanting larger license fees early because they'd lose them later; which would limit the adoption of a standard. In addition, they would have little incentive to allow free licensing to encourage adoption since there's no money at the other end.

I'm not sure what the answer is - perhaps a compulsory license fee that is the same for all users of the technology? Of course, then I could charge a high upfront one time fee, rather than a per unit fee, effectively locking out newcomers.

Of course, eliminating submarine patents would go a long way. If a person has applied for a patent, they should be required to notify a potential infringer when they first notice the infringement, not after the patent being granted. After a certain time limit, the infringer should be grandfathered into non-infringement. If they have been notified, and the patent subsequently is upheld, then the are liable if they failed to modify their infringing item. A separate arbitration board would hear arguments, and if they decide the patent appears to be valid then either they settle or the infringer posts a bond set by the panel. The winner of the eventual suit gets the bond. I would even say that granting the patent, and winning a challenge, would be enough to get the patent holder the bond; since a panel of experts decided the infringement issue earlier but did not rule on the patentability. Alternatively, they could settle both issues at once

I think the sheer complexity of this approach alone would have everything everywhere tied up in litigation for years. That alone is a mark against it.

Instead, let's use a simpler method, and take away patents from software, methods, or any other intangibles. That will take away the current minefield where almost any nontrivial software is technically in violation of a patent. And it would make sense.

A brilliant new design for a computer (or a piece of it) can be patented. (Note this means a quantum leap, not an incremental improvement). In the same vein, if you came up with a brilliant new design for a guitar, causing it to weigh 40% less and have a tone quality far better than anything on the market, you could patent that guitar design.

However, if you came up with some brilliant new chords that this guitar can play, you can't and shouldn't be able to patent those. Even if they're brilliant, even if you're the first to ever play them. You can copyright any songs you write with them, of course. But you can't keep someone else from using the same concept in their own songs.

Software is the same as the music. It is the unpatentable intangible played on the patentable tangible. You can copyright it, but you should not be able to stop someone from independently create something interoperable.

Patent legislation in the USA is very unclear on questions about whether it should apply to software. That's why it's always ignored in the debate, with everyone focussing on the rulings from the CAFC and the Supreme Court. There is good grounds for saying the legislation excludes software ideas, since the Constitution only allows patents where they promote the progress of useful arts - and all the studies say software patents impede such progress.

A flat exclusion of software from patentability is one solution, and its the best one. Other possibilities include an exclusion of liability when using ideas for the purpose of compatibility. That wouldn't fix all problems, but it would fix the h.264 and other file format problems.

Oh sure, lets get the government involved in this! Because they're:EfficientLooking out for the peopleFocusedNot interested in porkUninfluenced by patent holders

And who should be involved in this that meets those criteria, business? If you think business is "efficient", then you haven't looked terribly deeply into business. The other ones I don't even think anyone has any serious beliefs business is any good at. People only accuse government of all the things you describe because we have a big public win

The honest truth is NOTHING is efficient. And NOTHING is really interested in anything other than collecting as much power as possible/maintaining the status quo.

I'm merely saying that expecting a solution from the government is silly. So is expecting one from industry.

However, if over time this truly becomes enough of a problem, the market will end up coming up with a solution. Right now - we're so below critical mass that expecting anything to crystallize out of the chaos is unreasonable.

We could solve the H.264 debate if a country's legislature were to mandate that any patents that contribute to an industry-recognized standard were unenforceable in the application of that standard.

I have read until here. What you propose is unfortunately not allowed under the TRIPS agreement [wikipedia.org], which requires that once that a patent has been granted, the holder must be able to enforce it. While there can be exceptions to this rule, I highly doubt that a country trying to get rid of the H.264 patents that way will get away with it.

If a legislative body wants to fight these patents, the best thing it can do is to require the use of unencumbered technologies in the government.

I don't think it'll in any way be practical to expropriate that IP, which is essentially what you are talking about. However, that is not the biggest problem with patents. The biggest problem with patents is that a standard is never proven patent free, only that no claim of infringement has been made against it yet. This is why I would like standards bodies to have the ability to call for patents, and any patent claim not made within a reasonable time frame is forfeit as related to that standard. A relevant current example is Theora - they claim it's patent free but is it really? What if someone like ISO or ITU-T could publish the standard, demand that any patent claims must be done within three months and if none were made you knew with 100% certainty that any later claims are null and void? It would be wonderful. I don't see this as a way of freeing IP, but it would go a long way of reducing patent FUD and submarine patents. Even if it should turn out to be patented you know which bits and could work to remove those and try again.

Given that the alternative is forcing everybody looking to implement the standard to follow the published information from all patent issuing bodies, and scour them on the astronomical chance that somebody has patented SOMETHING belonging to the standard, SOMEWHERE, for which you could be potentially liable, I'd say the GP's option is far better.

Some of the founders were worried that the patent system wouldn't allow enough time for inventions to spread, as America had a much greater land mass than England. That's how out of date this idea is.

Software patents are totally worthless. All they do is impede progress. Consider a software patent on controlling a lawn mower. You could patent this idea. Could you patent lawnmowers? Of course not - patenting the idea of cutting grass can be laughed off by everyone, except for a few lawyers and jurors in East

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I'm not sure that industry can solve this mess that government created."

I don't know about Australia, but if it has to do with protecting or accumulating wealth - the modern intent of patents - in America, then any associated government mess that has been created in the last 30 years was at the behest of, paid for, and crafted by industry.

Hence, the average American's and the nation's interests are rarely represented. You only get "messes" when legislation is focused solely on the interests of a few.

There are several factors to the H.264 problem. The problem of patents on standards is hard to legislate away unless the legislature sets the standards. That solution SHOULD be applied to things like the electrical code (where it's a mandate as well as a standard). There are just too many problems waiting if it's applied to mere industry standards.

Instead, that problem has to be solved by people behaving tastefully and not being idiots, so I suppose I'm saying it won't be solved.

The second issue is the MPEG-LA's use of FUD to scare others away from more open standards (or at least give them an excuse). THAT can be partially cured by declaring a limited time to sue over a supposed infringement. It's been 10 years for theora. If they haven't found a reason to sue yet, there isn't a valid one. The principle of estoppel applies well here, but the high cost of court could be avoided by writing it into law as a presumption rather than something you have to argue in court.

Narrowing the scope of patent suits by legally recognizing the right of a buyer to presume that relevant patents have been licensed and so absolving them of any further responsibility would help. For example, if my reasonably anticipated use of a cameras (that is, taking pictures with it for any purpose) violates a licensing agreement, it's the manufacturer and not me who can be sued over it.

The rest of the problem will require court reforms (sorely needed anyway) to make going to court affordable for mere mortals and reforming the patent office so that it stops rubber stamping everything. Perhaps if a patent is ruled invalid in court, the USPTO should be on the hook for the costs of that court case (since if it had done it's job nobody would have been in court over the patent).

ANSI used to have a policy that they would not accept standards which contained patented components. That changed in the 1980s, I think.
(The link to ANSI's patent policy [ansi.org] is currently returning the message "Cannot connect to the configuration database. For tips on troubleshooting this error, search for article 823287 in the Microsoft Knowledge Base at http://support.microsoft.com./ [support.microsoft.com]")

The legal way to address this is to require that standards bodies, from IEEE to ANSI to MPEG-LA, lose their exemption to antitrust law if they promulgate standards which contain patented components. Without that exemption, when companies get together to agree on a standard, it's conspiracy in restraint of trade.

In general, most of the more annoying patent problems are really antitrust problems. Anyone can get a very narrow patent on a very specific way of doing something. Such a patent is not useful unless the very specific way is a de-facto standard enforced by market dominance. That's an antitrust issue.

The reason MPEG-LA gets away with this is that the Justice Department signed off on it in 1997. [berkeley.edu]
That's consistent with the FTC-DOJ 1995 guidelines [usdoj.gov] in this area.
Anyone can buy an MPEG-LA license under stated terms. So they meet the guidelines. The guidelines don't address the issue of the interaction of de-facto standards and market power. They should. That's what needs to be revised.

So you want to establish a system where if an idea turns out to be really good, so much so that it becomes widely used and an standard, that all of a sudden the inventors lose any ability to make money off the idea and they lose their company and their investments?

Not exactly what I would pick as a means to encourage people to work or invest in this area.

No it doesn't. They could choose to withhold permission for it being included in the standard. Which is really the point, a lot of these formats would never have become standard if they had been forced to pay royalties on it from the get go. GIF and JPEG for instance ended up having issues, not to mention somethings with submarine patents where the corporation holding the patents lies about it.

The problem is the abuse of questionable patents that aren't disclosed or utilized by the entity holding them th

Use it to produce a home movie, you're okay.Use it to produce a indie movie, even with "pro" grade equipment and you're not.Use it to produce a demo reel for your work, and you're not.

Only parts of the generation or playback licensing have been paid for- you're on the hook for everything else and they'll enforce if you hit a certain threshold (about $100k of revenue of any kind generated from it...). They'll come mug you for money at that point and it's NOT cheap.

Thank you. The idea they are entitled for money for a creative product I make using their codec - effectively without other options in the market. Just try to buy a camera without it - is the opposite of freedom. Market freedom or personal freedom.

This market is NOT open, and there is a concerted effort to make it that way and keep it that way. Lots of patent-saber rattling and veiled threats. The folks who are behind this are the same people who will lie to you and tell you " you have options" and "the mar

As I understand the license, distributing the movie for free, but having the video hosting provider (such as Youtube) inject ads into your movie, requires that both you and the provider have a license.

Where an end user pays directly for video services on a title-by-title basis...royalties for video greater than 12 minutes (there is no royalty for a title 12 minutes or less) are...the lower of 2% of the price paid to the Licensee (on first arms length sale of the video) or $0.02 per title

Paid subscription services:

Where an end user pays directly for video services on a subscription-basis (not ordered or limited title-by-title), the applicable royalties per legal entity payable by the service or content provider are:

100,000 or fewer subscribers per year. No royalty.100,000 to 250,000. $25,000250,000-500,000. $50,000.500,000 to 1 million $75,000.Over $1 Million. $100,000.

Broadcast, Cable and Satellite:

where remuneration is from other sources, in the case of free television...satellite and/or cable Transmission, and which is not paid for by an End User), the licensee (the broadcaster) may pay...according to one of two royalty options:

(i) a one-time payment of $2,500 per AVC transmission encoder

or (ii) annual fee per Broadcast Market

starting at $2,500 per calendar year per Broadcast Markets of at least 100,000but no more than 499,999 television households$5,000 per calendar year per BroadcastMarket which includes at least 500,000 but no more than 999,999 television householdsand $10,000 per calendar year per Broadcast Market which includes 1,000,000 or more television households.

Free distribution over the Internet:

In the case of Internet broadcast for which the End User does not pay remuneration for the right to receive or view, i.e., neither title-by-title nor subscription), there will be no royalty during the first term of the License (ending December 31, 2010), and after the first term the royalty shall be no more than the economic equivalent of royalties payable during the same time for free television.

The Cap

In the case of the sublicenses for video content or service providers, the maximum annual royalty ("cap") for an enterprise (commonly controlled legal entities) is... $5 million per year in 2010.

$5 million a year for as many free H.264 video downloads (over 12 minutes) as Google has the capacity to host.

That deprives the patent holders of at least some of the right to profit from their patent, which means that you get into the legal minefield of expropriation and just compensation.

While the popular term for copyrights and patents ("intellectual property") really muddies the waters, they are not property rights. In fact, the Constitution specifies that they must be expropriated, not just that they may be. The Constitution states that copyright and patent terms must be for a "limited time", and that they are

Patents are not real property. They are monopoly privileges *created* by the state, and in fact they represent "expropriation" to begin with. Understanding this fact is critical.

The proposal in this article is backwards for exactly that reason. We have a problem created by state interference in the economy, and rather than propose that the state simply *quit creating the problem* we propose even more interference.

Entirely backwards. The solution here is the opposite of the proposal. Simply abolish patents instead.

No, it wouldn't. Despite pleas from conservatives to the contrary, nobody forces these people to allow the use of their patents in standards. They allow it because it gives them the chance to file massive law suits later on for infringement. Meaning that people have to pay for the license, suit or be left unable to use the standard.

This is the same reason why copyright terms cannot be shortened, even if you got a bill to do so past the Disney lobby.

Nonsense. For one thing, you can shorten the term of new copyrights without affecting existing copyrights. For another thing, if congress can extend the term of existing copyrights as they did for Disney's latest copyright grab, I think it's only fair that they be allowed to shorten them as well.

Without patents at all, every inventor has equal rights to what he invents. He just doesn't have any protection from those that steal rights from those who don't invent. What a patent really does is, in the name of protecting an inventor's rights from those who steal, it actually steals the rights from subsequent inventors (just because they didn't get a patent first). There is no property right in a patent as that right is always held. Instead, there is the expectation that the government will block the th

All patent-holders would need to be "justly compensated" for this taking of property.

That's the problem with using loaded terms like "intellectual property". Patents are not "property". According to the Constitution which you mentioned (Section 8 - Powers of Congress):

"The Congress shall have power...To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"